Opinion
No. 12–P–613.
10-02-2014
COMMONWEALTH v. Scott HEFNER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his G.L. c. 123A, §§ 12 –15, civil commitment to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person (SDP). The defendant contends that (1) the evidence was insufficient to substantiate a finding that he was presently a SDP within the meaning of G.L. c. 123A, (2) the judge erroneously admitted evidence of uncharged conduct of a sexual offense, and (3) the judge erroneously admitted testimony of an expert that was stale and not based on a personal interview with the defendant. We affirm.
Background. In 1982, when the defendant was sixteen years old, he was adjudicated delinquent for having committed an indecent assault and battery, a “sexual offense” as defined by G.L. c. 123A, § 1, as appearing in St.1999, c. 74, § 2. The defendant concedes he has a “broader overall criminal” record. In 1992, he was convicted of assault and battery on an eight year old girl, and, in 1999, he was convicted of an assault and battery and a kidnapping of a fifteen year old girl. On appeal, the defendant argues that the ultimate finding of his present dangerousness cannot be sustained because, in his view, the only enumerated sexual offense as defined by G.L. c. 123A, § 1, is the 1982 juvenile delinquency adjudication. He asserts that his other convictions do not fit the definition of an enumerated sexual offense under c. 123A, or the general definition, added by St.2004, c. 66, § 6, which includes: “any other offense, the facts of which, under the totality of the circumstances, manifest a sexual motivation or pattern of conduct or series of acts of sexually-motivated offenses.”
The Commonwealth initiated the SDP commitment procedure before the defendant was discharged from his committed sentence for the 1999 incident. See Commonwealth v. DeWeldon, 80 Mass.App.Ct. 626, 627 (2011). After a finding of probable cause on June 22, 2007, an order was issued from the Superior Court for the defendant's temporary commitment to the treatment center, pursuant to G.L. c. 123A.
We have reviewed the defendant's further argument that the statute's so-called “residual clause” is impermissibly vague and, noting that he failed to raise it below, we deem it waived. See Commonwealth v. Moses, 436 Mass. 598, 605 n. 4 (2002). See also Commonwealth v. Burgess, 450 Mass. 366, 371 n. 3 (2008) (“The defendant raises in this appeal a separate claim that the statutory language of G.L. c. 123A, § 15, is impermissibly vague. This claim is a facial challenge to the statute's constitutionality that should have been raised before”). In any event, to the extent that further review is required, see McHoul, petitioner, 445 Mass. 143, 157 (2005) ; Commonwealth v. Walker, 83 Mass.App.Ct. 901, 903 (2013), S. C., 467 Mass. 1017, 1018 (2014), we discern no substantial risk of miscarriage of justice in the application of the statute here.
Discussion. 1. Sufficiency of the evidence. The principal question here “boils down to whether, after viewing the evidence (and all permissive inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness as defined by G.L. c. 123A, § 1.” Commonwealth v. Boyer, 61 Mass.App.Ct. 582, 589 (2004).
a. Statutory elements. General Laws c. 123A requires the Commonwealth (as petitioner) to prove beyond a reasonable doubt that the defendant: (1) had been convicted of a “sexual offense” as defined by G.L. c. 123A, § 1 ; (2) suffers from a mental abnormality or personality disorder; and, as a consequence of which (3) is likely to commit sexual offenses if not confined to a secure treatment facility. See Commonwealth v. Boucher, 438 Mass. 274, 275 (2002) ; Commonwealth v. Cowen, 452 Mass. 757, 761 (2008).
b. Expert opinion. The judge's findings demonstrate his careful weighing of the evidence. The judge acknowledged that a disagreement existed among the experts as to whether the defendant suffered from an antisocial personality disorder or mental abnormality. The judge carefully assessed and analyzed the body of expert opinion evidence admitted at trial. He considered the methodology utilized by the two qualified examiners and the other experts who had testified. The judge then expressly found that the expert opinion evidence the Commonwealth presented, through Dr. Michael Henry, one of two qualified examiners in the case, and Dr. Carol Feldman, a forensic psychologist and sole probable cause hearing witness in this case, was “more reliable and convincing than the testimony” of the experts called by the defense, which included the other qualified examiner. “The matter of how much weight is to be given a witness, particularly an expert witness, is a matter for the trier of fact, not an appellate court.” Cowen, 452 Mass. at 762. See Commonwealth v. Husband, 82 Mass.App.Ct. 1, 6 (2012). Accordingly, we discern no error in the judge's well-supported findings, as trier of fact, to credit the opinions of Dr. Henry and Dr. Feldman over those offered by the other experts. It is not our role to substitute our judgment for that of the trier of fact. See Commonwealth v. Bradway, 62 Mass.App.Ct. 280, 291 (2004).
The judge concluded that the material facts surrounding the defendant's convictions together with the uncharged conduct, in totality, formed a pattern or course of conduct of sexually-motivated offenses committed by him on girls of a tender age. There is no legal requirement that the governing offense, upon which the Commonwealth relies, be an enumerated sexual offense. See Commonwealth v. Gillis, 448 Mass. 354, 361–362 (2007). The judge further determined that the defendant was likely to reoffend if not confined. In his informed view, the judge concluded that the mitigating factors identified by the defense experts did not outweigh the considerable risk that the defendant would likely reoffend.
2. Uncharged conduct. The defendant claims it was error to admit evidence of uncharged past conduct involving an adult female (T.F.) with whom he had two children. T.F. testified that, in 1994, the defendant had forced her, at knifepoint and against her will, to have sex. The Commonwealth had disclosed this proof to defense counsel before trial, and offered it to show the defendant's ongoing state of mind bearing on whether he was presently sexually dangerous. See Cowen, supra at 761–762. The defendant's challenge goes to the weight of the evidence and not its admissibility. However, even if we were to decide that the testimony was admitted in error, this brief testimonial account amidst a four-day trial was in essence merely cumulative of other sufficient, reliable evidence.
3. Expert evidence. The defendant claims it was error to admit evidence from Dr. Feldman, on the ground that her information was stale and was not derived from a personal interview with the defendant. This argument is foreclosed by Cowen, where the court held that “a qualified probable cause expert,” as was Dr. Feldman here, “may testify at the commitment hearing” pursuant to G.L. c. 123A, § 14(c ). Id. at 761.
The judgment issued from the Superior Court ordering the defendant's commitment is affirmed.
So ordered.